[Federal Register Volume 67, Number 19 (Tuesday, January 29, 2002)]
[Proposed Rules]
[Pages 4222-4225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1496]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7130-6]
RIN 2060-AG12


Protection of Stratospheric Ozone: Removal of Restrictions on 
Certain Fire Suppression Substitutes for Ozone-Depleting Substances; 
and Listing of Substitutes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
remove restrictions that were previously imposed on the use of certain 
substitutes for ozone-depleting substances (ODSs) under the Significant 
New Alternatives Policy (SNAP) program. Specifically, EPA is proposing 
to remove restrictions on the use of certain substitutes for halon fire 
suppression and explosion protection agents that are used in the total 
flooding end-use. The Agency is also proposing to add a substitute, 
with restrictions on its use, to the list of fire suppression and 
explosion protection agents.
    Elsewhere in today's Federal Register, EPA is taking these actions 
as a direct final rule without prior proposal because EPA views these 
as noncontroversial revisions and anticipates no adverse comments. A 
detailed rationale for this action is set forth in the preamble to the 
direct final rule.
    If we receive no adverse comments and no requests for public 
hearing in response to these actions, we will take no further activity 
in relation to this rule. If EPA receives adverse comments or a request 
for public hearing, we will withdraw the direct final rule and review 
any comments in accordance with this proposal. If a public hearing is 
requested, EPA will provide notice in the Federal Register as to the 
location, date, and time. Any parties interested in commenting on this 
action should do so at this time.

DATES: Comments must be received in writing by February 28, 2002.

ADDRESSES: Public comments and data specific to this action should be 
sent to Docket A-91-42, U.S. Environmental Protection Agency, OAR 
Docket and Information Center, 401 M Street, SW., Room M-1500, Mail 
Code 6102, Washington, DC 20460. The docket may be inspected between 8 
a.m. and 5:30 p.m. on weekdays. Telephone (202) 260-7548; fax (202) 
260-4400. As provided in 40 CFR part 2, a reasonable fee may be charged 
for photocopying. To expedite review, a second copy of the comments 
should be sent to Margaret Sheppard at the address listed below under 
FOR FURTHER INFORMATION CONTACT. Information designated as Confidential 
Business Information (CBI) under 40 CFR, part 2, subpart 2, must be 
sent directly to the contact person for this notice. However, the 
Agency is requesting that all respondents submit a non-confidential 
version of their comments to the docket as well.

FOR FURTHER INFORMATION CONTACT: Margaret Sheppard at (202) 564-9163 or 
fax (202) 565-2155, U.S. Environmental Protection Agency, Stratospheric 
Protection Division, Mail Code 6205J, Washington, DC 20460. Overnight 
or courier deliveries should be sent to the office location at 4th 
floor, 501 3rd Street, NW., Washington, DC, 20001. You also may contact 
the Stratospheric Protection Hotline at (800) 296-1996 or EPA's Ozone 
Depletion World Wide Web site at ``http://www.epa.gov/ozone/title6/snap/''.

SUPPLEMENTARY INFORMATION: See additional information, pertaining to 
this action, provided in the Direct Final action of the same title 
located in today's Federal Register.

I. EPA Proposal

    EPA would remove restrictions that were imposed on the use of 
certain substitutes for ODSs under the SNAP program in the fire 
suppression and explosion protection industry sector. The regulations 
implementing the SNAP program are codified at 40 CFR part 82, subpart 
G. The appendices to subpart G list substitutes for ODSs that are 
unacceptable or that have restrictions imposed on their use. The 
revisions would modify the appendices to subpart G.
    The direct final rule will be effective on April 1, 2002 without 
further notice unless we receive adverse comment (or a request for a 
public hearing) by February 28, 2002. If EPA receives adverse comment, 
we will publish a timely withdrawal in the Federal Register informing 
the public that all or part of this rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on this 
proposed rule. We will not institute a second public comment period on 
this action. Any parties interested in commenting must do so at this 
time.
    You may claim that information in your comments is confidential 
business information, as allowed by 40 CFR part 2. If you submit 
comments and include information that you claim as confidential 
business information, we request that you submit them directly to 
Margaret Sheppard in two versions: one clearly marked ``Public'' to be 
filed in the public docket, and the other marked ``Confidential'' to be 
reviewed by authorized government personnel only.

II. Administrative Requirements

A. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector.
    Under section 202 of the UMRA, EPA generally must prepare a written 
statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year. Before 
promulgating an EPA rule for which a written statement is needed, 
section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Section 204 of the UMRA requires the 
Agency to develop a process to allow elected state, local, and tribal 
government officials to provide input in the development of any 
proposal containing a significant Federal intergovernmental mandate.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for

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State, local, or tribal governments or the private sector. Because this 
rule imposes no enforceable duty on any State, local or tribal 
government it is not subject to the requirements of sections 202 and 
205 of the UMRA. EPA has also determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments; therefore, EPA is not required to develop a plan 
with regard to small governments under section 203. Finally, because 
this rule does not contain a significant intergovernmental mandate, the 
Agency is not required to develop a process to obtain input from 
elected state, local, and tribal officials under section 204.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is significant and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines significant regulatory action as one that is 
likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, OMB notified EPA 
that it considers this a ``significant regulatory action'' within the 
meaning of the Executive Order and EPA submitted this action to OMB for 
review. Changes made in response to OMB suggestions or recommendations 
will be documented in the public record.

C. Paperwork Reduction Act

    EPA has determined that this proposed rule contains no information 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., that are not already approved by the Office of Management and 
Budget (OMB). OMB has reviewed and approved two Information Collection 
Requests (ICRs) by EPA which are described in the March 18, 1994 
rulemaking (59 FR 13044, at 13121, 13146-13147) and in the October 16, 
1996 rulemaking (61 FR 54030, at 54038-54039). These ICRs included five 
types of respondent reporting and record-keeping activities pursuant to 
SNAP regulations: submission of a SNAP petition, filing a SNAP/TSCA 
Addendum, notification for test marketing activity, record-keeping for 
substitutes acceptable subject to narrowed use limits, and record-
keeping for small volume uses. The OMB Control Numbers are 2060-0226 
and 2060-0350.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

D. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule will remove regulatory restrictions on the use of 
certain fire suppressants and replace them with a recommendation to use 
industry standards. These standards are typically already required by 
state or local fire codes, and this rule does not require tribal 
governments to change their regulations. Thus, Executive Order 13175 
does not apply to this rule.

E. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this proposed rule. EPA has 
also determined that this rule will not have a significant economic 
impact on a substantial number of small entities. For purposes of 
assessing the impact of today's rule on small entities, small entities 
are defined as (1) a small business that produces or uses fire 
suppressants as total flooding agents with 500 or fewer employees or 
total annual receipts of $5 million or less; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Primarily, 
the rule removes regulatory restrictions on the use of most fire-
suppressants used as total flooding agents and, instead, defers to the 
voluntary consensus standards set by the National Fire Protection 
Association. Thus, users of these substitutes are being relieved of 
regulatory constraints. For this action, EPA is also changing the 
listing of a substitute from acceptable subject to use

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conditions to unacceptable. This agent, HBFC-22B1, was phased out of 
production more than five years ago, except for a few essential uses, 
because of its high ozone depletion potential. Later, the manufacturer 
withdrew it from the market because of its toxicity. Because this agent 
is generally unavailable and because of the potential liability 
associated with its toxic effects, EPA believes it is extremely 
unlikely that anyone is currently using this agent. We expect that 
listing this agent as an unacceptable substitute will have no 
significant impact on a substantial number of small entities. If anyone 
has information that small businesses are still using HBFC-22B1 and 
that there are impacts on those businesses that EPA should consider in 
making its decision, they should submit that information to EPA. With 
respect to EPA's decision on Halotron II, EPA is finding it acceptable 
for all uses requested by the manufacturer. Moreover, the manufacturer 
of the new fire suppressant, Halotron II, has not yet sold it, so 
today's action does not affect, in any way, current usage. For 
Envirogel, today's action removes the use conditions and narrowed use 
limit on Envirogel with one additive, while maintaining the existing 
narrowed use limit on Envirogel used with all other additives. Thus, 
EPA is removing several regulatory constraints on the current ability 
of any entity, including small entities, to use this substitute. In 
addition, today's rule prevents potential conflicts between EPA 
regulations and existing state, local and tribal fire code requirements 
that incorporate NFPA standards by referring to standards of the NFPA.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. By 
introducing new substitutes and removing regulatory restrictions on a 
number of acceptable substitutes, today's rule gives additional 
flexibility to small entities that are concerned with fire suppression. 
EPA also has worked closely together with the National Fire Protection 
Association, which conducts regular outreach with, and involves small 
state, local, and tribal governments in developing and implementing 
relevant fire protection standards and codes.

F. Applicability of Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. The halocarbon and inert gas fire 
suppressants in this proposed rule are used primarily in commercial 
areas and the workplace. These are areas where we expect adults are 
more likely to be present than children, and thus, the agents do not 
put children at risk disproportionately. The Agency finds a fetal 
toxin, HCFC-22B1, unacceptable in today's action. However, because this 
agent is generally unavailable and because of the potential liability 
associated with its toxic effects, EPA believes it is extremely 
unlikely that anyone is currently using this agent. Therefore, our 
action on this chemical is not likely to change the risk to children. 
If there were any change, it would add further protection for children. 
The public is invited to submit or identify peer-reviewed studies and 
data, of which the Agency may not be aware, that assessed results of 
early life exposure to the halocarbon and inert gas agents addressed in 
today's proposed rule.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, Section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rulemaking involves technical standards. EPA proposes to use 
the NFPA 2001 Standard on Clean Agent Fire Extinguishing Systems, 2000 
edition, a voluntary consensus standard developed by the National Fire 
Protection Association (NFPA). You can obtain copies of this standard 
by calling the NFPA's order telephone number at 1-800-344-3555 and 
requesting order number S3-2003-00. The NFPA 2001 standard meets the 
objectives of the rule by setting scientifically-based guidelines for 
exposure to halocarbon and inert gas agents used to extinguish fires. 
In addition, EPA has worked extensively in consultation with OSHA to 
encourage development of technical standards to be adopted by voluntary 
consensus standards bodies.

H. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule will remove 
regulatory restrictions on the use of certain fire suppressants and 
replace them with a recommendation to use industry standards. These 
standards are typically already required by state or local fire codes, 
and this rule does not require state, local, or tribal governments to 
change their regulations. Thus, Executive Order 13132 does not apply to 
this rule.

I. Executive Order 13211 (Energy Effects)

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply,

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Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Primarily, the proposed rule would 
remove regulatory restrictions on the use of most fire-suppressants 
used as total flooding agents and, instead, defers to a voluntary 
consensus standard. Thus, users of these substitutes are being relieved 
of regulatory constraints. In addition, the rule allows wider use of 
substitutes, providing greater flexibility for industry. For the one 
substitute not acceptable, EPA believes it is unlikely that anyone is 
currently using this agent because this agent is generally unavailable 
and because of the potential liability associated with its toxic 
effects. Further, we have concluded that this rule is not likely to 
have any adverse energy effects.

    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

    Dated: January 15, 2002.
Christine Todd Whitman,
Administrator.
[FR Doc. 02-1496 Filed 1-28-02; 8:45 am]
BILLING CODE 6560-50-P